"Standing" Up for the Environment: The Ability of Plaintiffs to Establish Legal Standing to Redress Injuries Caused by Global Warming

By Bertagna, Blake R. | Brigham Young University Law Review, March 1, 2006 | Go to article overview

"Standing" Up for the Environment: The Ability of Plaintiffs to Establish Legal Standing to Redress Injuries Caused by Global Warming


Bertagna, Blake R., Brigham Young University Law Review


I. INTRODUCTION

Corpses floating in the streets;1 citizens looting the city they had once called home;2 people wading through inundated neighborhoods, foraging "for the bare necessities of life."3 Such grim scenes one might expect to view on the nightly news-another unfortunate account, perhaps, of the misery and disorder plaguing a third-world country. Few hearts were prepared, however, to observe these deplorable scenes occurring in their own country.

The source of this unprecedented disaster was Hurricane Katrina, and it delivered to Gulf Coast residents an indelible lesson of why many refer to such a hurricane as nothing less than a "monster."4 Katrina's pulverizing winds and towering storm surge toppled the concrete floodwalls protecting the city of New Orleans, releasing "a wall of water" that devastated the city and created "the costliest storm in U.S. history."5

In addition to its astronomical costs, Katrina ignited a storm of speculation over the possible link between global warming and the cause of the storm. Robert F. Kennedy Jr. blamed Katrina partly on "President Bush's reluctance to cap carbon-dioxide emissions."6 Former Vice President Al Gore, speaking of lessons learned from Katrina, stated that although terrorism is "extremely serious ... on a long-term global basis, global warming is the most serious problem we're facing."7

Not everyone agrees, however, that there is a causal link between global warming and natural disasters such as Katrina. According to President George W. Bush, Katrina was not the consequence of "the malice of evil men," but rather "the fury of water and wind."8 Dr. William Gray, a pioneer in the science of hurricane forecasting, is confident that Katrina was not caused by global warming and that the impact of global warming on hurricanes is being "grossly exaggerated."9 The EPA admits that it is still uncertain about the actual character of the risks associated with global warming.10

The polemic regarding the actual consequences of global warming is now moving from the political and scientific arenas into the courtroom. In the aftermath of Katrina, a New Orleans firm filed a complaint in federal court against oil companies, alleging that these fossil-fuel based businesses constitute the "greatest single source" of global warming and that these companies generated "conditions whereby a storm of the strength and size of Hurricane Katrina would inevitably form and strike the Mississippi Gulf Coast."11 Some view these suits as a necessary mechanism to redress injuries resulting from negligent actions of oil companies; others believe that such attorneyled conflicts are merely "a sobering reminder of our litigation-crazed society."12

Regardless of the motivation underlying these claims, one threshold consideration stands between the plaintiffs and any favorable judgment: legal standing. It is "common understanding" that in order for a federal court to assert jurisdiction over a particular matter, the petitioner must prove that she has standing to sue.13 In other words, the petitioner must prove to the court that her claim is fit for its adjudication. Thus, before a judge can award a favorable verdict to a plaintiff for a defendant's contributions to global warming, the plaintiff must first satisfy this "threshold jurisdictional question."14

This Comment argues that petitioners seeking redress for injuries that they have suffered from a defendant's contributions to global warming cannot establish legal standing in a federal court. To develop and support this conclusion, this Comment first argues that plaintiffs will fail to satisfy the constitutional requirements of standing on three different bases: (1) they will be unable to prove that the global warming resulting from the defendant's carbon dioxide emissions is the likely cause of their injury; (2) where they allege that the defendant's actions will cause a future injury, they will be unable to prove that the injury will occur imminently; and (3) they will fail to prove that carbon dioxide emissions of a particular entity caused their injuries. …

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